Can Documents be Marked In Cross Examination, if Witness Admits Them?

Jojy George Koduvath

The Answer is, YES.

Documents can be used in two ways in cross-examination. They are:

  • 1. For marking it, to use it as a substantive evidence.
    • Note: It must be a document that is produced in the regular way, invoking provisions of Orders VII, VIII and XIII, CPC.
  • 2. For the cross examination, invoking Sec. 145 of the Evidence Act.
    • Note: It can be done – even without producing the document in court. But, it must be a document written by the witness.

Relevant Provisions in the Civil Procedure Code for the Production of Documents

Order VII

  • Rule 14. Production of document on which plaintiff sues or relies.— (1) Where a plaintiff sues upon a document or relies upon document in his possession or power in support of his claim, he shall enter such documents in a list, and shall produce it in Court when the plaint is presented by him and shall, at the same time deliver the document and a copy thereof, to be filed with the plaint.
  • (2) Where any such document is not in the possession or power of the plaintiff, he shall, wherever possible, state in whose possession or power it is.
  • (3) A document which ought to be produced in Court by the plaintiff when the plaint is presented, or to be entered in the list to be added or annexed to the plaint but is not produced or entered accordingly, shall not, without the leave of the Court, be received in evidence on his behalf at the hearing of the suit.
  • (4) Nothing in this rule shall apply to document produced for the cross-examination of the plaintiffs witnesses, or handed over to a witness merely to refresh his memory.

Order VIII

  • Rule 1-A. Duty of defendant to produce documents upon which relief is claimed or relied upon by him.—(1) Where the defendant bases his defence upon a document or relies upon any document in his possession or power, in support of his defence or claim for set-off or counter-claim, he shall enter such document in a list, and shall produce it in Court when the written statement is presented by him and shall, at  the same time, deliver the document and a copy thereof, to be filed with the written statement.
  • (2) Where any such document is not in the possession or power of the defendant, he shall, wherever possible, state in whose possession or power it is.
  •  (3) A document which ought to be produced in Court by the defendant under this rule, but, is not so produced shall not, without the leave of the Court, be received in evidence on his behalf at the hearing of the suit.
  • (4) Nothing in this rule shall apply to documents —
    • (a) produced for the cross-examination of the plaintiff’s witnesses, or
    • (b) handed over to a witness merely to refresh his memory.

Order XIII

  • Rule 1. Original documents to be produced at or before the settlement of issues.—(1) The parties or their pleader shall produce on or before the settlement of issues, all the documentary evidence in original where the copies thereof have been filed along with plaint or written statement.
  • (2) The Court shall receive the documents so produced:
  • Provided that they are accompanied by an accurate list thereof prepared in such form as the High Court directs.
  • (3) Nothing in sub-rule (1) shall apply to documents—
    • (a) produced for the cross-examination of the witnesses of the other party; or
    • (b) handed over to a witness merely to refresh his memory.

Inherent power u/s. 151 CPC  to be invoked if failure to produce documents before the Settlement of Issues

Documents liable to be produced along with Plaint (Order VII Rule 14) or Written Statement (Order VIII Rule 1-A(4) can be produced subsequently with “the leave of the Court” as provided under these rules itself.

  • No such provision in Order XIII.
  • Therefore, inherent power u/s. 151 CPC has to be invoked.

Documents Produced for the Cross-Examination and used to Refresh his Memory

Relevant provisions of the Evidence Act are the following:

  • Cross examination – Sec. 145, Evid. Act
  • Refresh memory – Sec. 159, Evid. Act

Note: In both these cases, the statements in the document must be that of the witness.

If Witness Admits Document In Cross Examination, it can be Marked

Relevant provisions as to admission are Sec. 21 and 58 Evidence Act.

  • Section 21: Admission is relevant and may be proved.
  • Section 58: Facts admitted need not be proved.

A document properly produced invoking Order VII Rule 14 or Order VIII Rule 1-A(4) CPC or Order XIII Rule 1 CPC (or invoking inherent power u/s. 151 CPC) can be marked as an exhibit under Sec. 21 or 58 Evidence Act.

Following Decisions Say as to Valid Marking of Documents in Cross Examination

  • Trimurti Charitable Public Trust v. Muni Kumar Razdan, 2024-1 RN 25 (MP)
  • Bhag Singh Gambhir v. Rama Arora, on 8 July, 2022
  • S.  Raj v. S.  Gopalakrishnan 2022 Supreme(Mad) 831
  • Tamun Impex Company Private Limited v. Ozone Projects Private Limited, 2019-5 CTC 432; 2019 1 LW 29
  • Prabhakara Alias Suresh v. State of Karnataka, 2018-5 KarLJ 661
  • A.  Sennimalai Gounder v. E. S. Selambanan, 22 Aug 2017, 2017 Supreme (Mad) 1592;
  • Narayan Singh v. Ram Chandra Mandal, 2016-3 BLJ 248
  • Kannusamy Naicker v. Nataraja Naicker, 2012 Supreme(Mad) 3664
  • Bommanayaka v. Bommanayaka, 2013-3 AIR(Kar)(R) 299; ILR 2012 (Kar) 3391; 2013-2 KarLJ 114
  • Bharath Electronics Contract Labour Union v. Bharat Electronics Ltd, Bangalore, 2012-3 AIR(Kar)(R) 150; ILR 2012 (Kar) 1653; 2012-6 KarLJ 61.

In Prehlad Krishan v. Smt.  Mohini Devi, 1999-2 Raj CJ 282; 1999-1 RLR 518 (Raj), it was contended that no rent note was executed by the tenant in favour of the plaintiff though the plaintiff has got signature of defendant on a blank rent note. The High Court held that the argument, in its considered view, ‘is contrary to his own admission regarding execution of the rent note, which is a duly exhibited document on record of the trial Court during cross-examination of the tenant and, therefore, it is not open to the appellant to raise such a plea in second appeal before this Court’.

In Bhima Jewellery and Diamonds (P) Ltd.  v. O. Sandeep Kumar (Devan Ramachandran, J.), AIR 2021 Ker  8; 2020-3 ILR (Ker) 1028; 2020-5 KLT 40, it is held as under:

  • “28. In such confines, the production of a document under Order VII Rule 14(4), Order VIII Rule 1A (4) and Order XIII Rule 1(3)(a) of the CPC, axiomatically, will have to be construed to happen when it is physically put to the witness during cross examination and when the Court then receives it on record. Hence no Court can refuse a document being put to a witness during cross examination merely for the reason that it had not been produced earlier or not produced as per the manner in which it ought to have been normally produced.
  • 29.  Therefore so concluded, an adjunct question arises as to how the Trial Court should deal with a document produced at the cross examination of a witness. The answer to this is fairly easy when the witness admits the document – the Court then will mark it and admit it in evidence, subject to its relevance and probative value.”

In Chalil Kalliani v. Kizhakke Vattakandiyil Madhavan, 18 Jan 2008 (KT Sankaran, J.), 2008 Supreme (Ker) 43, it is held as under:

  • “It is relevant to note that Ext. B1 dated 7.5.1900 relied on by the defendants is also a registration copy of the original document. It was marked in evidence during the cross examination of PW1.”

Also Read:

End Notes 1

1. Document Marked Collectively in Cross Exam. – Contents are to be Specifically Proved

The substantial question of law raised in Mahalaxmi Shikshan Samiti v. Manikrao Kishnarao Dessai, 2021-5 AllMR 50; 2022-1 MhLJ 262, is the following:

  • “Whether the reliance by the First Appellate Court on the document marked at Exhibit 76 is erroneous when the contents of such document were not proved and such document was exhibited in the cross examination of PW 1 which is not permissible in law in the facts of the case?”

It is answered in the affirmative by holding, inter alia, that ‘the reliance by the Appellate Court on the documents marked as Exhibit 76-C collectively’ was erroneous, ‘since the contents of the documents are not proved’.

The Court pointed out –

  • Chapter V of the Indian Evidence Act, 1872 relate to documentary evidence.
  • Section 61, says that the contents of documents may be proved either by primary or by secondary evidence.
  • In terms of Section 62, primary evidence means the document itself being produced for inspection of the Court.
  • As per Section 63, secondary evidence means and includes, (1) Certified copies, (2) Copies made from the original by mechanical processes, and copies compared with such copies, and (3) Copies made from or compared with the original, (4) Counterparts of documents, and (5) Oral accounts of the contents of a document.
  • Section 64 mandates that documents must be proved by primary evidence except in cases fall under Sec. 65.
  • Section 65 stipulates the conditions in which the secondary evidence may be given. It requires that the ‘foundation’ is to be laid before production of secondary evidence.

The Bombay High Court further pointed out –

  • Mere production of the document is no proof of its contents as the legal position is that mere production and marking of the document as exhibit by the Court cannot be held to be due proof of its contents.
  • Its execution has to be proved by admissible evidence, by the evidence of those persons, who can vouch or state the truth of the facts in issue.
  • A document can be proved primarily by examining the person, who has executed or created the document by writing and signing the same, but when such examination is not possible, execution of a document can be proved by examining a person, who saw the document being written and signed.
  • In absence of direct evidence relating to writing and signature on the document, its execution may be proved by examining a person, who is (i) qualified and competent to express his opinion as to the handwriting and signature , (ii) by acquaintance of otherwise and (iii) by comparison of the handwriting as envisaged under Section 73 of the Evidence Act (S. Gopal Reddy V. State of A.P. 1996-4 SCC 596, referred to)

The High Court pointed out the following in Kaliya v. State of M.P. 2013-10 SCC 758, observing that it ‘highlighted the parameters regarding permissibility of secondary evidence’-

  • “Section 65(c) of the Act 1872 provides that secondary evidence can be adduced relating to a document when the original has been destroyed or lost, or when the party offering evidence of its contents cannot, for any other reason, not arising from his own default, or neglect, produce it in reasonable time. The court is obliged to examine the probative value of documents produced in court or their contents and decide the question of admissibility of a document in secondary evidence. (Vide: H. Siddiqui (dead) by Lrs. v. A. Ramalingam, AIR 2011 SC 1492; and Rasiklal Manikchand Dhariwal and Anr. v. M.S.S. Food Products, (2012) 2 SCC 196).
  • However, the secondary evidence of an ordinary document is admissible only and only when the party desirous of admitting it has proved before the court that it was not in his possession or control of it and further, that he has done what could be done to procure the production of it. Thus, the party has to account for the non-production in one of the ways indicated in the section. The party further has to lay down the factual foundation to establish the right to give secondary evidence where the original document cannot be produced. When the party gives in evidence a certified copy/secondary evidence without proving the circumstances entitling him to give secondary evidence, the opposite party must raise an objection at the time of admission. In case, an objection is not raised at that point of time, it is precluded from being raised at a belated stage. Further, mere admission of a document in evidence does not amount to its proof. Nor, mere marking of exhibit on a document does not dispense with its proof, which is otherwise required to be done in accordance with law. (Vide: The Roman Catholic Mission v. The State of Madras, AIR 1966 SC 1457; Marwari Khumhar and Ors. v. Bhagwanpuri Guru Ganeshpuri and Anr., AIR 2000 SC 2629; R.V.E. Venkatachala Gounder v. Arulmigu Viswesaraswami and V.P. Temple and Anr., AIR 2003 SC 4548; Smt. Dayamathi Bai v. K.M. Shaff, AIR 2004 SC 4082; and Life Insurance Corporation of India and Anr. v. Rampal Singh Bisen, (2010) 4 SCC 491).”

The High court relied on M.Chandra v. M. Thangamuthu, 2010-9 SCC 712 which held as under:

  • “We do not agree with the reasoning of the High Court. It is true that a party who wishes to rely upon the contents of a document must adduce primary evidence of the contents, and only in the exceptional cases will secondary evidence be admissible. However, if secondary evidence is admissible, it may be adduced in any form in which it may be available, whether by production of a copy, duplicate copy of a copy, by oral evidence of the contents or in another form. The secondary evidence must be authenticated by foundational evidence that the alleged copy is in fact a true copy of the original. It should be emphasized that the exceptions to the rule requiring primary evidence are designed to provide relief in a case where a party is genuinely unable to produce the original through no fault of that party.”

The Bombay High Court, in Mahalaxmi Shikshan Samiti v. Manikrao Kishnarao Dessai, 2021-5 AllMR 50; 2022-1 MhLJ 262, appraised the legal position authoritatively laying down as under:

  • “27. Mere admission of a document in evidence does not amount to its proof. Nor, mere marking of exhibit on a document does not dispense with its proof, which is otherwise required to be done in accordance with law. When a document is merely exhibited, while exhibiting the same, it does not finally decide the right of the party or form any opinion or express any opinion on the document. The document will have to be proved qua its contents in terms of Section 61 of the Indian Evidence Act as the said provision contemplate proof of contents of the documents, either by primary or secondary evidence.”

End Notes 2

Can Photocopies of documents be used in cross examination?

Yes.

Document Marked Without Objection: Courts in India consistently follow RVE Venkatachala Gounder

RVE Venkatachala Gounder v. Arulmigu (R.C. Lahoti & Ashok Bhan, JJ.), AIR 2003 SC 4548: (2003) 8 SCC 752,considered the effect of marking a secondary evidence (photocopy of rent-note) without any objection. It is the well-established decisive leading decision in the following propositions of law.

  • Objection as to the irregularity of mode adopted for proving the document should be taken when the evidence is tendered;
  • Once the document has been marked as an exhibit, the objection cannot be allowed to be raised at any subsequent stage.
  • Failure to raise a prompt and timely objection amounts to waiver of that right.
  • The objection enables the court to apply its mind and pronounce its decision on the question of admissibility.
  • It is a rule of fair play for it would have enabled the party tendering the evidence to cure the defect by giving formal proof of a document.

Following earlier decisions were relied on in RVE Venkatachala Gounder v. Arulmigu (supra) :

  • The Roman Catholic Mission v. The State of Madras, AIR 1966 SC 1457;
  • Padman and Others v. Hanwanta, AIR 1915 PC 111;
  • P.C. Purushothama Reddiar v. S.Perumal, 1972 (2) SCR 646.

RVE Venkatachala Gounder v. Arulmigu (supra) held as under:

  • “17. The other document is the rent note executed by Defendant 2 in favour of the plaintiff. Here also the photocopy of the rent note was produced. Defendant 2 when in the witness box was confronted with this document and he admitted to have executed this document in favour of the plaintiff and also admitted the existence of his signature on the document. It is nobody’s case that the original rent note was not admissible in evidence. However, secondary evidence was allowed to be adduced without any objection and even in the absence of a foundation for admitting secondary evidence having been laid by the plaintiff.
  • 18. …
  • 19. ….
  • 20. The learned counsel for the defendant-respondent has relied on Roman Catholic Mission v. State of Madras [AIR 1966 SC 1457] in support of his submission that a document not admissible in evidence, though brought on record, has to be excluded from consideration. We do not have any dispute with the proposition of law so laid down in the abovesaid case. However, the present one is a case which calls for the correct position of law being made precise. Ordinarily, an objection to the admissibility of evidence should be taken when it is tendered and not subsequently. The objections as to admissibility of documents in evidence may be classified into two classes: (i) an objection that the document which is sought to be proved is itself inadmissible in evidence; and (ii) where the objection does not dispute the admissibility of the document in evidence but is directed towards the mode of proof alleging the same to be irregular or insufficient. In the first case, merely because a document has been marked as “an exhibit”, an objection as to its admissibility is not excluded and is available to be raised even at a later stage or even in appeal or revision. In the latter case, the objection should be taken when the evidence is tendered and once the document has been admitted in evidence and marked as an exhibit, the objection that it should not have been admitted in evidence or that the mode adopted for proving the document is irregular cannot be allowed to be raised at any stage subsequent to the marking of the document as an exhibit. The latter proposition is a rule of fair play. The crucial test is whether an objection, if taken at the appropriate point of time, would have enabled the party tendering the evidence to cure the defect and resort to such mode of proof as would be regular. The omission to object becomes fatal because by his failure the party entitled to object allows the party tendering the evidence to act on an assumption that the opposite party is not serious about the mode of proof. On the other hand, a prompt objection does not prejudice the party tendering the evidence, for two reasons: firstly, it enables the court to apply its mind and pronounce its decision on the question of admissibility then and there; and secondly,  in the event of finding of the court on the mode of proof sought to be adopted going against the party tendering the evidence, the opportunity of seeking indulgence of the court for permitting a regular mode or method of proof and thereby removing the objection raised by the opposite party, is available to the party leading the evidence. Such practice and procedure is fair to both the parties. Out of the two types of objections, referred to hereinabove, in the latter case, failure to raise a prompt and timely objection amounts to waiverof the necessity for insisting on formal proof of a document, the document itself which is sought to be proved being admissible in evidence. In the first case, acquiescence would be no bar to raising the objection in a superior court.
  • 23. Since documents Exts. A-30 and A-34 were admitted in evidence without any objection, the High Court erred in holding that these documents were inadmissible being photocopies, the originals of which were not produced.”

RVE Venkatachala Gounder v. Arulmigu, AIR 2003 SC 4548: (2003) 8 SCC 752, is referred to and quoted with approval in the following decisions:

Lachhmi Narain Singh v. Sarjug Singh, AIR 2021 SC 3873;
Sonu @ Amar Vs State Of Haryana, 2017 AIR SC 3441; 2017-8 SCC 570;
Nandkishore Lalbhai Mehta v. New Era Fabrics Pvt.  Ltd., 2015-9 SCC 755;
Shalimar Chemical Works Ltd.  v. Surendra Oil & Dal Mills, 2010-8 SCC 423;
Malay Kumar Ganguly v. Sukumar Mukherjee, 2009-9 SCC 221;
Directorate of Revenue v. Mohammed Nisar Holia, 2008 2 SCC 370;
Dayamathi Bai v. K. M. Shaffi, AIR 2004 SC 4082; 2004-7 SCC 107.

See: Anil Madan vs R.K.Madan & Ors. on 21 August, 2009 (Indian Kanoon). In this decision the plaintiff was confronted with a photocopy of an affidavit jointly executed by the plaintiff, defendant No.1 and defendant No.2 which had been exhibited.

Read Blogs:

Mere Marking Does Not Prove the Contents – Not applied

1. Narbada Devi Gupta v. Birendra Kumar Jaiswal, 2003-8 SCC 745

  • This proposition (Mere Marking Does Not Prove the Contents) was neither attracted nor applied in Narbada Devi Gupta v. Birendra Kumar Jaiswal, 2003-8 SCC 745, for – the rent receipts were taken as proved, for, it was ‘not disputed’ by the other side.

2. Kaliya v. State of Madhya Pradesh, 2013-10 SCC 758

  • In Kaliya v. State of Madhya Pradesh, 2013-10 SCC 758, also the proposition was neither attracted nor applied, for – the secondary evidence of dying declaration produced in this case (with foundational evidence) was accepted by the Court.

3. Ramji Dayawala v. Invest Import: AIR 1981 SC 2085

  • In Ramji Dayawala v. Invest Import: AIR 1981 SC 2085, also the proposition was neither attracted nor applied  for the  truth of the facts in the document was “in issue”.

Mere Marking Does Not Prove the Contents – Applied

1. M. Chandra v. M. Thangamuthu, 2010-9 SCC 712

  • But in M. Chandra v. M. Thangamuthu, 2010-9 SCC 712, the proposition (Mere Marking Does Not Prove the Contents) was applied for – the Validity and Genuineness of the photocopy (of the Caste Certificate) was very much in question.

2. H. Siddiqui v. A. Ramalingam, (2011) 4 SCC 240

  • In H. Siddiqui v. A. Ramalingam, (2011) 4 SCC 240, also the proposition was applied , for – the photocopy was shown to the witness during cross-examination alone, and signature alone was admitted by the witness. 

3. Tarajee Khimchand v. Yelamarti Satyam, AIR 1971 SC 1865

  • Similarly in Tarajee Khimchand v. Yelamarti Satyam, AIR 1971 SC 1865, also the proposition was applied , for – the accounts of the Plaintiff would not be proved by itself.

End Notes 3

Exhibiting of a document is an administrative act.

In Bama Kathari Patil v. Rohidas Arjun Madhavi, 2004-2 AllMR 290; 2004-3 BomCR 509; 2004-3 CivCC 14; 2004-2 MhLJ 572, it is observed as under:

  • “3. By an application dated 20th October, 2003, the petitioner (original defendant No. 1) made a prayer for recalling the plaintiff for further cross-examination on the ground that the agreement dated 14th August, 1986 was exhibited after the cross-examination of the plaintiff was concluded. Learned Counsel for the petitioner submits that as the document was not exhibited at the time of cross-examination, the defendant No. 1 did not cross examine the plaintiff on that document. Since the document has been exhibited after the cross-examination of the plaintiff was over, he should be given an opportunity of cross-examining the plaintiff regarding the said document. Exhibiting of an document is an administrative act. It is true that a document which is produced in Court is ordinarily exhibited only after its proof. But, exhibiting a document does not mean that the document is proved and non-exhibiting a document does not mean that the document is not proved. A document is required to be proved in accordance with the provisions of the Evidence Act. Merely for administrative convenience of locating or identifying a document, it is given an Exhibit number in courts. Exhibiting a document has nothing to do with the proof though, as a matter of convenience, only the proved documents are exhibited.”

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1 Comment

  1. Dr. Abdul Jabbar Shaikh Azad's avatar Dr. Abdul Jabbar Shaikh Azad says:
    September 14, 2025 at 6:22 pm

    sir, you given wrong judgement, I have checked it. The high court dismisses the petitioner case because this case is based on 145 section of evidence act. Not making document.

    Bhima Jewellery and Diamonds (P) Ltd. v. O. Sandeep Kumar (AIR 2021 Ker 8): If a witness admits a document during cross-examination, the court will mark it as an exhibit, subject to relevance and probative value.

    ADV. Abdul Jabbar

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